JUDGMENT

Lindsay and Kanhaiya Lal, JJ. - The dispute in this appeal relates to the property of Sardar Khan, who died on the 24th of September, 1907, leaving two daughters, Musammat Mubarak-un-nissa and Musammat Bismilla Begam, who are the plaintiffs, and three grandsons Muhammad Raza Khan, Maqsud Khan and Daud Khan by a pre-deceased son, who are the defendants Nos. 1, 2. and 3. He also left a brother Mahmud Khan and a nephew, Nazar Muhammad Khan, who was the son of one of his pre-deceased brothers. Mahmud Khan had two sons, Usman Khan and Chhidda Khan. The plaintiff Musammat Bismilla Begam was married to Usman Khan, who died in the life time of Mahmud Khan.

2. On the death of Sardar Khan his property was entered in the names of the defendants Nos. 1, 2 and 3. The plaintiffs took no steps to get their names entered in the revenue papers in regard to the share of the property now claimed by them. Their case was that the property in dispute devolved on the death of Sardar Khan on the plaintiffs to the extent of a two-thirds share and on Mahmud Khan to the extent of the remaining one-third; that Mahmud Khan told them that he had got their names entered in the revenue papers in respect of their two-thirds share, and that they had been in receipt of the profits of their share from Mahmud Khan till 1324 Fasli. Their complaint was that the defendants Nos. 1, 2 and 3 had wrongfully made certain mortgages of the property in question in favour of the other defendants and that it was not until some of the latter defendants had obtained a decree for the sale of the properties mortgaged with them that they came to know that their names were not entered in the revenue papers. The present suit was accordingly filed by them for the recovery of possession of the two-thirds share of the properties in the villages of Patwari, Nagli Biloch and Basantpur, and for mesne profits. A declaration was also claimed that the mortgages effected by the defendants Nos. 1, 2 and 3 in favour of the other defendants were not valid and binding on them.

3. The suit was principally contested by Narain Das and his sons, and Chhadammi Lal. Their defence was that the plaintiffs had never been in possession of any portion of the property in dispute and that the claim was barred by limitation and by Section 115 of the Indian Evidence Act and Section 41 of the Transfer of Property Act. It was further pleaded by some of the contesting defendants that the plaintiffs had relinquished their claim to a share in the property of their father at the time when mutation of names was effected in favour of the defendants Nos. 1, 2 and 3.

4. It was admitted that Ibrahim Khan, the father of the defendants Nos. 1, 2 and 3, had died in the life time of Sardar Khan. The court below found that the defendants Nos. 1, 2 and 3 were in possession of the property in dispute as trespassers; that the plaintiffs had never been in receipt of the profits of the property in question and that the claim was barred by limitation. It further found that the plaintiffs had relinquished their claim to a share in the property of their father and that the mortgagees had acted, after reasonable care and inquiry, in taking the mortgages now impeached, from the ostensible owners, whose names were entered in the revenue papers, for consideration, and in good faith.

5. The first question for consideration in this appeal is whether the claim of the plaintiffs was barred by limitation. The lower appellate court was apparently led to think, by what was stated in the plaint and which does not appear to have been contested by the other side, that the defendants Nos. 1, 2 and 3 were not entitled to any share in the property of their grandfather Sardar Khan ; but that is not, however, so. Under the Muhammadan law, on the death of Sardar Khan, the property devolved on the two plaintiffs to the extent of a two-thirds share, and the remaining one-third share devolved on the defendants Nos. 1, 2 and 3 as residuaries of the first